Photo Credit: USA Today
The 25th Amendment to the U.S. Constitution provides for the succession of power when the president is “unable to discharge the powers and duties of his office.” It empowers the vice president and a majority of the Cabinet to remove an incapable president, over his objections, with the approval of two-thirds of both houses of Congress.
As alarm about Trump’s mental state ripples from the 30 percent of Americans who think it is “poor” to the 62,000 mental health professionals who have signed a letter of warning to Sen. Bob Corker (R-Tenn.)—who worries about Trump starting World War III—to the White House staffers who think he is “unraveling,” the 25th Amendment is now getting attention previously devoted to the Constitution’s provisions for impeachment.
This talk is no longer confined to the president’s enemies. When adviser Steve Bannon told President Trump that the real danger to his presidency was not impeachment but the 25th Amendment, Trump reportedly said, “What’s that?”
As Trump and the rest of the country come to understand the 25th Amendment, they may come to agree with Bannon that it poses the greatest threat to Trump’s tenure in office.
Choose Your Remedy
The 25th Amendment and impeachment are remedies for different problems. While the impeachment process controls a president who acts irresponsibly by committing “high crimes or misdemeanors,” the 25th Amendment applies to a president who is incapable of acting responsibly.
Ever since Trump’s unhinged speech in Phoenix in August, his erratic behavior has shifted attention from his political actions to the underlying question of his mental competence.
“I really question his ability to be—his fitness to be—in this office,” former director of national intelligence James R. Clapper Jr. said after Trump’s rambling speech to a crowd of supporters who grew bored and puzzled by his ranting.
That view seems to be gaining credence within Trump’s own camp.
In August, Secretary of State Rex Tillerson called a Trump a “moron” after the president demanded a 10-fold increase in the size of the U.S. nuclear arsenal.
Numerous reports from the White House indicate that Chief of Staff John Kelly is tightly controlling access to Trump in order to curb his self-destructive behavior. One former official even speculated to Vanity Fair’s Gabriel Sherman that Kelly and Secretary of Defense James Mattis have discussed what they would do in the event Trump orders a nuclear first strike. “Would they tackle him?”
Even a close Trump friend and ally has said he is “shocked” by Trump’s recent outbursts.
Such worries are elevating the 25th Amendment process from a liberal fever dream to a distant yet real possibility.
If Trump’s extreme behavior grows more extreme, more obvious and more detached from politics, senior officials like Kelly, Tillerson and/or Mattis might feel obliged to invoke the 25th Amendment publicly. Then the Cabinet would have to decide if Trump was capable of holding office. If a majority of the Cabinet and Vice President Mike Pence agreed, and two-thirds of both houses of Congress agreed, then Pence would become acting president.
The 25th Amendment gives Congress a role in the process. Section 4 states that while the Cabinet must issue a written statement, Congress may create a body to issue “a written declaration that the President is unable to discharge the powers and duties of his office,” which would elevate the vice president to acting president, if approved by two-thirds vote in both Houses.
Rep. Jamie Raskin (D-Maryland) has introduced legislation to create a panel on presidential incapacity. So far 28 Democrats have signed the resolution.
While the 25th Amendment solution now seems highly unlikely, it was highly unlikely nine months ago that any Cabinet member would disparage Trump’s intelligence (and not publicly deny that he had done so), or that Bannon, of all people, would see the 25th Amendment as a threat to Trump’s presidency.
A year from now, things could be very different. If Trump has failed to pass tax cuts or tax reform; stumbled into war in North Korea or Iran; and alienated more GOP allies with his “malignant narcissism,” the feeling that he is simply incapable of carrying out the duties of office may well grow and spread within his own administration.
One attraction of the 25th Amendment as a solution to the problem of Trump’s mental instability is that the criteria for removal from office is not the abuse of power but the inability to exercise it. The issue is less political than clinical.
If current trends continue, this might eventually make the 25th Amendment attractive to Trump’s supporters. In the event of obviously deranged presidential behavior, Pence and the Cabinet could invoke the 25th Amendment without accusing Trump of abuse of power or renouncing his political agenda.
Indeed, Pence & Co. could advise Trump to take a medical leave of absence in the best interests of the presidency, his family, and his supporters. Trump could declare victory over the “Swamp” and retire to Mar-a-Lago, giving his political heirs a clearer path to power. The 25th Amendment might turn out to be the vehicle that carries Pence (and Bannon) into the 2020 presidential campaign unburdened by Trump’s madness.
In short, if the problem is that the president is clinically incompetent, the solution is the 25th Amendment. If the problem is that the president is constitutionally dangerous, the solution is impeachment. If the president is both—and there is plenty of evidence that he is—the country will have to choose between the political remedy and the medical remedy.
The 25th Amendment beckons as impeachment-lite, a constitutional method of forcing the president out of power without passing judgment on his politics. It’s that hardy Washington solution: an attractive cop-out. Which is why we will be hearing more about it.